Church v Price; Re O [2000] NSWSC 754

New South Wales Supreme Court

CITATION : Church v Price; Re O [2000] NSWSC 754 CURRENT JURISDICTION: Equity Division Protective List FILE NUMBER(S) : SC 7/2000 HEARING DATE(S) : 24/07/2000 JUDGMENT DATE : 1 August 2000

June Lilian Church (P) PARTIES : O (D1) Dianne Price (D2) JUDGMENT OF : Young J

D M Flaherty (P) COUNSEL : J Pentelow (D1) M Fraser (D2) M Zdilar (Solicitor) for Protective Commissioner Duncan & MacKenzie (P) SOLICITORS : Marsdens (D1) Friend & Co (D2) CATCHWORDS : MENTAL HEALTH [16]- Legal proceedings- Duties of solicitor for person who appears incapable of managing affairs. PROFESSIONS & TRADES [72]- Lawyers- Confidentiality- Possible conflict of acting for alleged incapable person and relative- Duty. Re an Alleged Incapable Person (1959) 77 WN (NSW) 156 Bolkiah (Prince Jefri) v KPMG [1999] 2 AC 222 Brayley v Wilton [1976] 2 NSWLR 495 D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 CASES CITED : Re EG [1914] 1 Ch 927 Re Furney [1964] ALR 814 McD v McD [1983] 3 NSWLR 81 Newman v Phillips Fox (1999) 21 WAR 309 Parry-Jones v Law Society [1969] 1 Ch 1 DECISION : Notices of motion dismissed

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST YOUNG J TUESDAY 1 AUGUST 2000

7/2000 - CHURCH v PRICE; RE O

JUDGMENT

1 HIS HONOUR: I have before me two sets of notices of motion, one by each of the plaintiff and first defendant, each seeking an order that the solicitor acting for the other no longer act. 2 The proceedings concern O who is alleged by the plaintiff not to be capable of managing her affairs. The plaintiff is O's sister. The second defendant, Mrs Price, is O's niece who would appear on some of the evidence to have been a person who was for many purposes treated by O as her daughter. 3 For many years, the second defendant has been assisting O to manage her affairs. 4 In the last few years there have been disagreements between O and the second defendant. Some of these disagreements seem to have arisen because the second defendant suggested that O would need to leave her house and O was reluctant to do so. However, O has made serious allegations against the second defendant from time to time. 5 Matters came to a head when the plaintiff realised that the second defendant had sold O's house under the power of attorney that O had given her. I made orders in February 2000 appointing the Protective Commissioner receiver and manager of the estate and the matter of the house has now been dealt with. The present state of the case is that it will, all other things being equal, be heard finally by me on 14 August 2000. The issue will be whether O is or is not capable of managing her affairs. There are reports of two doctors and two consultant psychologists proffered by the plaintiff in support of her case, and there is also some evidence the other way. 6 The plaintiff is represented by Miss MacKenzie, solicitor, whose firm is Duncan & MacKenzie of Bankstown. Miss MacKenzie first met O when she came to Miss MacKenzie's office on 15 November 1997 for advice following the death of her husband. Miss MacKenzie handled the estate and advised O about her will. Miss MacKenzie continued to act for O in various matters, and in March 1999 was telephoned by O's next door neighbour who said that O would very much like to see her. Miss MacKenzie called on O, and O said that she was very worried about the power of attorney she gave her niece and suggested that the niece had sold O's car behind her back and had not accounted for the money and had committed various other misdemeanours. Miss MacKenzie made a further will for O. In December 1999, O telephoned Miss MacKenzie and O said she had been reconciled with her niece and wanted her restored in part to the will. Miss MacKenzie prepared a codicil.